Daily Times

Following the movement to restore Iftikhar Chaudhry as Chief Justice of Pakistan (CJP), the judiciary has emerged as the most powerful of the three pillars of the state. The courts, through judicial activism and populist decisions, have squeezed the Executive and the Parliament’s power to that of their subordinates. Call me old fashioned, but I was raised with the notion that Parliament is supreme, and the will of the people shall prevail. One wonders where we went wrong as a state. How did we end up in a position where one organ of the state has acquired a disproportionate level of power, and is like a bull in a china shop!

I am not being a cynic here, but when one wants to evaluate the current state of affairs, one can’t ignore the fact that Pakistan has a chequered judicial history. We can start with the decision by Justice Munir, validating the use of extra constitutional emergency powers by the then Governor General Ghulam Muhammad through the use of doctrine of necessity (Mr. Bracton would never have thought that his doctrine would actually come to use). Similarly, the judicial murder of Zulfikar Ali Bhutto and the long tradition of standing behind military dictators to validate their coups are not the brightest chapters of our country’s judiciary. Who can also forget the leaked phone calls of one of the Chief Ministers to one of the High Court Judges, asking him to decide certain cases in his party’s favour. So, when people question certain decisions, and show some degree of reservation on certain actions of the courts, one can’t help but admit that the basis for these apprehensions are not completely unfounded.

Whether things took a turn for better or worse is anybody’s guess, but things did change after the restoration movement of CJP Iftikhar Chaudhary. I was one of those who supported it on the principle that a sitting Chief Justice cannot be dismissed arbitrarily by the order of the Executive. However, after the restoration, the judiciary increasingly asserted itself, and soon started encroaching upon the functioning of the other two pillars of state. For instance, the Supreme Court decision on the 19th amendment, whereby it limited the role of the parliamentary committee in the appointment of judges to a mere formality. Similarly, Yousuf Raza Gillani was removed from the office of the Prime Minister on charges of contempt of court. Somehow, the very political leadership that stood by the judiciary during its restoration movement was now viewed with a degree of mistrust and suspicion.

As per the Rule of Law index published by World Justice Project, Pakistan ranks at 105 out of 113 countries. In the criminal justice index, we were ranked at 81, and for access to civil justice we stood at 107 out of 113 countries

They were now viewed as the root cause of all our problems. As if one institution with the saviour syndrome wasn’t enough, in came another.

Over the years, the courts have further extended their powers by excessively using article 143 of the Constitution which allows it to assume jurisdiction in matters involving questions of public importance and enforcement of fundamental rights. Suomoto cases have been taken on a range of issues, from sugar prices to the very recent case of a Pakistan Tehreek-e-Insaf (PTI) MPA thrashing a citizen in Karachi (he was eventually ordered to deposit Rs 3 million to the dam fund). Recently the Islamabad High Court ordered the government to submit a list of members of a specific minority community serving in the federal government. With the current level of intolerance and bigotry, as was apparent during the Atif Mian episode, one can well imagine what will become of those on the list.

So where do we stand today? As per the Rule of Law index published by World Justice Project, Pakistan ranks at 105 out of 113 countries. In the criminal justice index, we were ranked at 81, and for access to civil justice we stood at 107 out of 113 countries. One would expect the superior judiciary to focus its energies on fixing their subordinate courts, where there are thousands of pending cases and it takes an entire lifetime for people to get decisions on very basic legal issues. It took the courts eight years to decide whether the actress Meera was married or not! Another issue is the large volume of frivolous litigation pending before the courts, but its solution would require taking on the very powerful lobby of lawyers, which the courts are not in a position to do, as they draw their strength from them.

The problem of judicial over reach and interference in functioning of the other two pillars of the state stems from the lack of accountability. It’s the only pillar of the state upon which there are no checks and balances of either the Executive or the Parliament. Article 209 of the Constitution of Pakistan empowers the Supreme Judicial Council of Pakistan to hear cases of misconduct against judges. The council is composed of the Chief Justice and other senior judges from the SC and other provincial High Courts. I haven’t come across a single case where the Supreme Judicial Council dismissed a member of the judiciary on charges of misconduct. Mostly, the proceedings remain pending until the time the judge against whom the proceedings were initiated retires from service. The future Parliaments will have to decide on how to hold the judiciary accountable, be it through introduction of impeachment proceedings, or any other mechanism but the system will have to be revisited for a smoother functioning of the state.

The writer is a Pakistan based journalists and anchor-person

Published in Daily Times, September 19^th 2018.